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Property B Summary Equitable Interests Notes

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This is an extract of our Property B Summary Equitable Interests document, which we sell as part of our Property Law Notes collection written by the top tier of Monash University students.

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Topic 1 : Equitable Interests

1. Trusts: a. Express Trusts i. Must be evidence in writing 53(1)(b) PLA ii. Can be created:

1. Intervivos

2. Via a will iii. Created when:

1. Actual transfer to transferee

2. Declare yourself to be a trustee b. Resulting Trusts (RT) i. Definition: circumstances such that equity presumes, despite transfer of legal title to one person, that the transferor's intention was for some/all of the equitable title to be retained by the transferor. Disregard paperwork, look at the contributions of those involved

1. If a court finds that a RT exists, X will hold beneficial interest in the property on trust for Y

2. BUT for a purchase price resulting trust, where two people have contributed to the purchase money in unequal shares, and the property is purchased in their joint names, in the absence of the presumption of advancement, there is a presumption that the property is held by the purchaser on trust for themselves as tenants in common in the proportions in which they contributed to the purchase price Calverley a. Purchase price: what is considered to be a contribution to the purchase price?
i. Liability under a mortgage is part of the purchase price Calvery however subsequent contributions to mortgage payments by a person who is not a joint mortgagor do not give rise to the presumption Baumgartner v Baumgartner ii. Includes the home built shortly after buying the vacant lot Cummins ii. Presumption of RT:

1. Arises where a person purchases property and arranged for title to be transferred to another person, who provides no consideration Little v Little a. Under this trust, it is presumed that the transferee holds the property on trust for the person providing the purchase money

2. When does it arise: when property is transferred to a volunteer or when property is purchased in the name of another iii. Rebutting the presumption

1. Intention to the contrary

a. Evidence of an actual intention (implied through words or conduct - not imputed through a reasonable person) to pass a beneficial interest at the time of the transfer or purchase Calverley i. Can look at subsequent conduct after the transfer to determine original intent Cummins b. Onus is on the person seeking to rebut the presumption c. Where a husband and wife purchase a matrimonial home, each contributing to the purchase price and title is taken in the name of one of them, can be inferred that it was intended they both half onehalf interest Cummins i. The court is unlikely to find a PPRT in a matrimonial situation. d. Irrelevant factors: Calverly: i. Mortgage repayments ii. Nonfinancial contributions

2. Presumption of advancement a. The transferee is presumed to take beneficial title when the transfer is from: i. Husband to wife (or male fiance to female fiancee) ii. Parent to child b. Can be rebutted by a contrary intention: i. i.e. that the provider of the purchase money intended to retain beneficial title ii. Evidence may include:

1. Husband's purchase was made using damages he received after workplace accident and was for his own benefit for his own super fund Buffrey v Buffrey iii. Doesn't matter if rebuttal was for an illegal purpose, can still be used Boumelhelm iv. Timing

1. Confined to actions at time of acquisition c. Constructive Trusts (CT) i. Common intention constructive trust (CICT)

1. Definition: equity will hold that a person has acquired an interest in property so as to prevent the holder of the legal interest in that property from behaving unconscionably, where the party has acted to their detriment Muschinski a. CICT can help to save a party where there is a resulting trust Muschinski

2. The following three elements must be proven: Ogilvie v Ryan

1. Actual common intention

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